Safeguarding Rights, Minimizing Exposure.

When school officials deal with violent or disruptive acts, they must not overlook students due-process rights

How far can school officials go to protect students and others from possible harm when disruptive or violent behavior erupts on school grounds? Can penalties be imposed on students who threaten the safety of others when such penalties might be viewed as a violation of their individual rights?

And what legal consequences might school districts face for failure to act when it is foreseeable that injury may result from serious misconduct?

School officials have a moral and legal duty to preserve the safety and wellbeing of all students, while not trampling on the constitutional rights of students involved in disruptive behavior. When violent acts occur on school campuses nationwide, officials tend to act swiftly and aggressively, sometimes too swiftly and aggressively, without proper consideration regarding the constitutional rights of students.

In light of the recent tragedy in Littleton, Colo., I can provide 10 guidelines to school administrators who wish to provide safe schools without violating the constitutional rights of disruptive students. While courts allow school administrators broad discretion in handling students whose behavior poses a threat to the safety of others, especially in school environments that have been plagued with incidents of violence or serious acts of misconduct, school officials must act responsibly. They must resist the temptation to act too aggressively when the situation does not warrant such a response.

Defensible Policies

* No. 1: Be certain administrative actions are based on well-developed and legally defensible school district policies.

The recent federal district court of appeals case, M.K.V. v. School Board of Brevard County, illustrates what can happen if a policy statement is not explicit and officials attempt to expand the coverage of a policy that lacks sufficient specificity.

A middle school in Florida enforced a student discipline policy prohibiting students from disrupting classes, distracting others, damaging school property or threatening and endangering the safety of other students. Telephone pagers, firearms and weapons also were banned under this policy. Students were prohibited from carrying dangerous weapons on school property or during school events. Failure to abide by this policy constituted grounds for expulsion. A student was expelled by the school board for possession of eight bullets on the school bus.

At the hearing, no evidence was presented indicating the student had exhibited disruptive behavior on the bus. He had, based on the assistant principal's testimony, created disruption on school grounds. The student was expelled and later appealed the board's decision to the district court of appeals. Arguing that he should not be found guilty of violating the school's policy because bullets are not deemed weapons, he further claimed that no one had been injured by his conduct.

The court held for the student in stating that the policy only referred to pagers, weapons and firearms. Moreover, there was no evidence the student had attempted to use the bullets in any manner. The court reversed and remanded the board's expulsion decision.

* No. 2: To the fullest degree possible, make certain that policy statements are as explicit as possible in identifying serious infractions that will result in suspension, expulsion or other forms of punishment.

Students should know specific infractions that will result in disciplinary action. Consequences should be linked with certain misbehaviors. For example, students should know that fighting will result in suspension.

It may be helpful to classify the various infractions by categories or levels from less serious to more serious and identify the specific disciplinary action associated with each infraction. This procedure will ensure that students are aware of consequences for violation of school rules. While this approach likely will minimize misunderstandings among students, rule violations should still be carefully explained in instances where students charged with infractions indicate they are unaware of the policy violation in question. Providing information to students in these situations is consistent with fundamental fairness.

Parent Understanding

* No 3: Take steps to ensure that students and parents are knowledgeable of policies regarding improper student behavior and the consequences of such behavior.

Students and parents must understand what is expected in the schools. Students should not be expected to conform to rules that are vague or ambiguous in interpretation or meaning. They should not be placed in the position of having to guess at the meaning of these rules.

School officials should set aside an adequate period of time once or twice a year for teachers to review disciplinary policies with students to increase their understanding of what is expected of them. Opportunities also should be provided for students to seek clarification on any policy, rule or regulation that they do not fully understand.

Once policies, rules and regulations have been sufficiently reviewed with students, they should be sent to parents for review and verification that they have been read and understood. School officials should be available to clarify any concerns raised by parents during this process.

* No. 4: The gravity of the situation and the immediate need to act should determine appropriate administrative actions in disciplinary matters

Obviously, some infractions committed by students are not as serious as others. School officials should resist the tendency to move too quickly in cases involving minor infractions. Officials should ask themselves if the offense is one that is clearly punishable based on policy? Is it a first offense or does it reflect a pattern of misbehavior? Did the infraction create material or substantial disruption or a threat to safety? Did it result in disrespect for authority? These are but a few examples of questions that should be raised as school officials attempt to respond to disciplinary matters.

If a student's actions create disruption, gross disrespect for authority or a threat to safety, then immediate and swift disciplinary action is warranted. In all cases, officials should rely on approved school policies and procedures for guidance and direction to ensure that due process occurs.

* No. 5: Minimal due process should always be provided for students facing short-term suspension.

Short-term suspension involves suspensions of 10 days or less as defined by the U.S. Supreme Court in the landmark Goss v. Lopez case. Students facing short-term school suspension must be provided a fair and impartial hearing. They also must be informed of the charges brought against them and given an opportunity to respond to these charges.

Officials must be mindful that students have a property interest in attending public schools. The school district may not withdraw this right to attend on grounds of misconduct absent fundamentally fair procedures to determine if misconduct occurred. The court ruled in Goss that students facing short-term suspensions from school not exceeding 10 days (thereby facing a loss of protected property interest) must be given some form of notice and afforded some type of hearing.

Due Process

* No. 6: A violation of either substantive or procedural due process will result in a violation of students' 14th Amendment rights.

School officials must recognize that due process involves both dimensions mentioned above. Consequently, they must be certain that their actions are not in conflict with either procedural or substantive requirements.

Officials meet procedural concerns when they follow prescribed constitutional steps in matters involving student discipline to ensure fundamental fairness. Substantive concerns are met when officials can demonstrate that they had a valid reason to take necessary administrative action against the student. They also must demonstrate that the methods they used during disciplinary proceedings were reasonable.

Many administrative decisions involving student disciplinary matters have been correct in substance but overturned later by the courts based on grounds that procedural requirements were not met. Conversely, procedural requirements have been met in many disciplinary cases while substantive requirements were not. In both instances officials have not been supported by the courts.

* No. 7: In loco parentis is not a license to treat students in an arbitrary and capricious manner. Students are entitled to 14th Amendment protections.

While in loco parentis gives school officials latitude to exert authority over students under their supervision, it is not a license to act in an arbitrary or capricious manner. The constitutional rights of students must be respected. The exercise of in loco parentis is limited to school matters involving academics and discipline. Areas outside of these two are reserved to parents.

Neither school officials nor teachers fully occupy the place of parents because they do not have the natural affection that parents hold for their children. Simply stated, in loco parentis requires prudence on the part of school personnel to ensure their actions are consistent with those that the average parent would exercise under similar circumstances. Usually when administrative actions conform to this standard, they are considered reasonable. Reasonable administrative actions are almost always supported by the courts.

We all are aware that students are subject to reasonable rules governing their behavior. But we also know that they enjoy personal rights and freedoms that must be recognized and respected. Students are entitled to fundamental fairness and equal protection guarantees of the 14th Amendment.

* No. 8: Failure to respond to threats by one student to another may result in liability charges if the student against whom the threat is made received bodily harm.

Threats made by students to other students always should be taken seriously especially in light of the perception that school violence is increasing. When school officials or teachers are informed of a possible threat, they must take appropriate and immediate steps to prevent the threat from being carried out. Failure to respond to threats that result in injury to another student may create serious personal liability. For example, if a student is injured by another student based on a threat where the evidence reveals that school personnel knew of the threat and failed to act, it may be difficult to escape liability charges based on the fact that the injury was likely foreseeable.

The recent tragedy in Littleton might have been avoided if school officials had been informed of threats made by troubled students and had taken appropriate steps to investigate the claims.

School officials and teachers have a duty to foresee that students may be harmed under certain circumstances. Once determined, they must act swiftly to protect students from harm. This action must be taken even if a threatened student is not under the direct supervision of a particular teacher. Knowledge of possible harm to students is the key that should trigger the need for appropriate action by school personnel.

Reasonable Actions

* No. 9: A reasonable exercise of administrative authority will pass court scrutiny.

School officials who act in a reasonable and prudent manner will receive less scrutiny by the courts. While we all recognize that school officials have broad discretion in establishing rules governing student behavior in school, their powers, however, are not absolute. They are subject to the standard of reasonableness.

Rules generally are considered reasonable when they are necessary to maintain proper order, decorum and a peaceful school environment so that teaching and learning can occur. The test used by the courts to determine enforceability of school rules is whether there is a sufficient justification by school officials of the need to enforce the policy, rule or regulation in the first place. The reasonableness of a rule cannot be decided in the abstract but rather in the context of application.

* No. 10: School officials always should be guided by fundamental fairness and a regard for the individual rights of all students in disciplinary cases.

Since students are afforded many of the same constitutional rights as adults, it is important that their rights be protected. The Supreme Court's Tinker v. Des Moines Independent Community School District case in 1969 reminded all of us that students do not shed their constitutional rights at the schoolhouse door. We should treat students fairly not because the courts mandate it but because it is the right thing to do.

We always must strive to model fairness in our dealings with students in all disciplinary matters. This means that a sufficient effort should be made to gather all facts surrounding each disciplinary case, including the student's side of the issues, and carefully weigh all facts before any punishment is contemplated. The seriousness of the situation, the student's past record of behavior and the urgency to act should be carefully considered prior to taking disciplinary action. When these steps are taken, students are assured of a fair hearing and a fair administrative decision, and school officials will have met their goal of ensuring fundamental fairness to all students, which is what really matters.

Nathan Essex is a professor of educational law and educational leadership and dean of the College of Education at University of Memphis, 215 Ball Education Building, Memphis, Tenn. 38152.